Nova Scotia Court of Appeal
Citation: O.E.A v. Nova Scotia (Community Services), 2021 NSCA 28
Date: 20210318
Docket: CA 504090
Registry: Halifax
Between:
O.E.A.
Applicant
v.
Minister of Community Services
Respondent
Restriction on Publication: s. 94(1) Children and Family Services Act,
S.N.S. 1990, c. 5.
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Judge: |
Beaton, J.A. |
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Motion Heard: |
February 25, 2021, in Halifax, Nova Scotia in Chambers |
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Held: |
Motion dismissed, without costs |
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Counsel: |
Angela Walker and Mary Jane McGinty, for the appellant Megan Roberts and Kate Dewey, for the respondent
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Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act, S.N.S. 1990, c. 5.
Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.
SECTION 94(1) PROVIDES:
94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.
Decision:
[1] Regret is a caustic emotion; it erodes logic that might have been employed in reaching a decision. This application centers around the remorse experienced by a parent, O.E.A., who decided upon a certain approach to litigation, all but ensuring a particular outcome for his/her child. The parent now regrets that decision. S/he now wishes to file an appeal, but the twenty-five day period for filing has already expired.
[2] The parent filed a Motion pursuant to Civil Procedure Rule 90.37(12)(h) (“the motion”) seeking the Court’s permission to extend the time for filing an appeal under the Children and Family Services Act, S.N.S. 1990, c. 5. The respondent Minister of Community Services (the “Minister”) opposed the motion, heard in chambers on February 25, 2021.
[3] Upon completion of the hearing I reserved my decision. The motion is dismissed, for the reasons that follow.
[4] Section 49 of the Act sets out the compressed timeline, relative to other appeals, for both filing of a notice of appeal and the hearing of that appeal:
49(1) An order of the court pursuant to any of Sections 32 to 48 may be appealed by a party to the Nova Scotia Court of Appeal by filing a notice of appeal with the Registrar of the Court within twenty-five days of the order.
…
(4) Where a notice of appeal is filed pursuant to this Section, the Minister is responsible for the timely preparation of the transcript and the appeal shall be heard by the Court of Appeal within ninety days of the filing of the notice of appeal or such longer period of time, not to exceed sixty days, as the Court deems appropriate.
[5] These provisions underscore the specialized nature of the subject matter—child welfare proceedings—and the increased sense of urgency associated with matters under the Act.
[6] This matter has its genesis in the taking of the child into temporary care the day following his/her birth, when s/he was placed with extended family members. At three months of age, the child was returned to the parent’s care, under the supervision of the Minister. Just over two months later, that proceeding was terminated.
[7] The following month the Minister was again involved with the child, who was moved back to the extended family placement. A month later, a second child protection proceeding began. The child has remained in the extended family placement since that time.
[8] The second proceeding was eventually scheduled for a contested, multiple day permanent care hearing to begin mid-December 2020. Several days prior to its commencement, counsel for the parent was instructed to advise all concerned the parent would no longer advance a plan of care at the hearing. S/he intended to take no position on the Minister’s plan of care, which advocated permanent care with a view to adoption.
[9] Following a relatively brief hearing (the “hearing”) held December 10, 2020, the child was placed in the permanent custody of the Minister under an Order for Permanent Care and Custody (the “Order”) made by the Honourable Justice Theresa Forgeron of the Supreme Court of Nova Scotia—Family Division.
[10] By the time the Order, made pursuant to s. 42(1)(f) of the Act, was imposed the child was 35.5 months of age, having spent a total of only three and a half months in the parent’s care, and only one month without the involvement of the Minister.
[11] The parent’s proposed notice of appeal would, in the normal course, have been due in this Court no later than January 20, 2021. The motion to extend the time for filing was received February 12, 2021. The materials put before the Court on the motion included affidavits of three witnesses: the parent, his/her former legal counsel, Mr. S., and social worker Ms. Anderson. In addition, the Court had the benefit of a transcript of the hearing that led to the Order, and a copy of the parent’s Affidavit as put before Justice Forgeron prior to the making of the Order.
[12] The parent’s position on the motion can be summarized as this: s/he seeks to appeal the Order because, at the time it was made, s/he felt unduly pressured to forfeit opposition to the permanent care hearing and, in turn, the Order. S/he says that pressure was exerted by his/her lawyer, social workers and family members, during a time when s/he was without sufficient or appropriate mental health supports. By the time s/he was able to avail him/herself of legal counsel who would assist in launching an appeal, the time period for doing so had already expired; thus an extension of time is now needed.
[13] The Minister opposes the motion on the basis the parent has failed to meet his/her burden to satisfy the Court on the legal test to be applied to grant such an extension. Furthermore, the Minister says it is not in the best interests of the child to now permit the late filing of the notice of appeal. The Minister is concerned about interference with permanency planning, in the form of adoption, actively underway for the child and involving identified proposed adoptive parents.
[14] At the hearing, the judge was presented with only one plan of care for the child—the Minister’s—advocating a permanent care order as the only viable choice before the court. It is difficult for the parent to now critique the judge’s decision, as the parent’s own brief affidavit evidence put to the judge, coupled with the Minister’s plan of care and the legislative factors the judge was required to consider, propelled the decision in the direction it took. Given the parent’s position before the judge, the Order was inevitable.
[15] Whether to grant an extension of time to file a notice of appeal is a discretionary decision (An Jager v. Jager, 2018 NSCA 66 at para. 5). The often cited three-part test found in Jollymore Estate v. Jollymore, 2001 NSCA 116 (at para. 22) requires consideration of these factors:
1. Did the moving party have a bona fide intention to appeal when the right existed, despite having missed the time limit?
2. Does the moving party have a reasonable excuse for having missed the prescribed time limit?
3. Are there compelling or exceptional circumstances, consisting at least of arguable grounds of appeal, to support an extension of time?
[16] Given the proposed appeal relates to proceedings concluded and an Order made under the Act, further adjustment to the analysis is needed to ensure consideration of the best interests of the child. The “best interests” concept is enshrined in s. 2 of the Act, which sets out its purpose:
2(1) The purpose of this Act is to protect children from harm, promote the integrity of the family and assure the best interests of children.
(2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child.
[17] This application requires the same prioritizing of the best interests of the child (S.E.L. v. Nova Scotia (Community Services), 2002 NSCA 62 at para. 11). Section 3(2) of the Act gives direction to decision-makers in determining the best interests question. For the purposes of this matter, the following paragraphs of subsection 2 are of particular note:
(2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant:
(a) the importance for the child’s development of a positive relationship with a parent or guardian and a secure place as a member of a family;
…
(c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity;
…
(e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
…
(i) the merits of a plan for the child’s care proposed by an agency, including a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian;
…
(k) the effect on the child of delay in the disposition of the case;
(l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian;
…
(n) any other relevant circumstances.
[18] Consideration of the criteria in Jollymore, supra, must also occur through the lens of one of the Act’s recitals, concerning children’s measure of time (S.E.L., supra, at a para. 11; R.K. v. Family and Children's Services of Cumberland County, 2006 NSCA 19 at para. 5). That recital allows that children have a different sense of time than do adults.
[19] In N.L. v. Nova Scotia (Community Services), 2010 NSCA 84, Fichaud J.A. elaborated on the accommodations needed to apply the Jollymore test to a matter under the Act:
[10] In CFSA cases, the third Jollymore principle, respecting the merits, is adjusted to conform with the statute's objective. In Nova Scotia (Minister of Community Services) v. S.E.L., 2002 NSCA 62, Justice Cromwell said:
[10] In many civil cases, extensions of time are often granted quite readily especially where the delay is short and the party seeking the extension is not represented by counsel. However, extensions of time for appealing under the Act call for the consideration of at least two special factors.
[11] The first is that, as in all proceedings under the Act, the best interests of the child or children are paramount. It is not a matter of doing justice simply between the appellants and the respondent, but of serving the best interests of the child who is the subject of the proceedings. Secondly, the Act makes it clear that time limits are important so that the child’s sense of time is respected. Nowhere in the Act is this more clear than with respect to appeals. The Act has an extraordinary and virtually unique requirement that appeals must be heard by the Court of Appeal in 90 days, with the possibility of a 60 day extension, from the date of the filing of the notice of appeal. The time limit for hearing the appeal runs from the filing of the notice of appeal; it follows that any extension of the time for filing the notice of appeal in effect extends the time for hearing the appeal. In other words, extending the time for filing the notice of appeal accomplishes indirectly what the Act does not specifically provide for -- an extension of the time within which the appeal must be heard.
[11] In R.K. v. Family and Children's Services of Cumberland County, 2006 NSCA 19, after quoting this passage from S.E.L., I said:
[5] The two principles cited in S.E.L. flow from the CFSA and are complementary. The CFSA s. 2(2) states:
In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child.
The “proceedings” in s. 2(2) include this extension application. The CFSA’s preamble states:
Children have a sense of time that is different from that of adults and services provided pursuant to this Act and proceedings taken pursuant to it must respect the child’s sense of time.
A delay that impacts the parent only minimally may exhaust a full formative term for an infant. So s. 49 of the CFSA strictly limits the time for appeal. Respect for the child’s sense of time sustains the child’s best interest.
[6] In other civil proceedings the named litigants may be the only parties whose interests are relevant to an extension application. In a disposition proceeding under the CFSA, the child’s interests trump the interests of the parents and Agency. So I should first consider the children’s interests in the extension application before folding in the components of the standard Jollymore test. This essentially is what was done in S.E.L., at ¶ 12-28.
[12] C.O. v. Nova Scotia (Minister of Community Services), 2010 NSCA 83, ¶ 14-21, reiterated these principles. [Emphasis added]
[20] Proceeding first with the question of the best interests of the child, it is of concern that the evidence put forward by the parent did not address this in any significant way. The parent’s evidence emphasized his/her wishes for the future, and regret at not having contested the Minister’s position at the time of the hearing. The only mention of the child’s best interests was found in the parent’s statement, in his/her reply affidavit, that “… I verily believe that it is in C[…]’s best interests that I am involved in [his/her] life.”
[21] The parent also touched on the notion of the child’s measurement of time in his/her affidavit:
26. I appreciate that time is of the essence in these matters and that settling C[…]’s living situation is of the utmost importance … [his/her] life has not yet changed in any material way since these child protection proceedings were commenced.
[22] In oral argument the parent’s counsel echoed that theme, suggesting the 23-day delay between expiration of the appeal period and the filing of this application was not significant enough to effect any meaningful repercussions for the child, whose “universe has not changed because [his/her] life has been relatively consistent over all that time.” This would seem to ignore the fact the child, whether aware of it or not, has spent very close to an entire lifetime under the aegis of the Minister.
[23] In N.L., supra, Fichaud J.A. identified the need for specific evidence as to how the positive impacts upon the child of the granting of the motion would outweigh the negative impacts:
[14] But, as stated in S.E.L., R.K. and C.O., in CFSA cases there is another determinative factor. To allow the extension, the chambers judge must be satisfied that the extension is in the child's best interest. That is not to say the chambers judge applies the same standard to the merits as the panel would apply if the appeal were to proceed. But there must be particulars of evidence, beyond mere conclusory allegations, on this application indicating that the potential consequences of an extension would be better for the child than the potential consequences of the extension's denial. [Emphasis added]
[24] The evidence of this parent did not provide such information. The only evidence on the point came from the Minister’s social worker Ms. Anderson, who discussed the negative impacts upon the child of any further delay in permanency planning. She described the child has been spending time with proposed adoptive parents. Granting the motion will delay permanency planning. The child will not be placed for proposed adoption while an appeal is ongoing. Ms. Anderson offered:
It is the position of the Minister of Community Services that further delaying permanency planning for [C] is not in [his/her] best interests, particularly given that [s/he] has been the subject of two child protection proceedings and [his/her] life circumstances have been uncertain for the large majority of [his/her] short life.
[25] I am concerned the granting of the motion could have a negative impact on the child’s best interests, in terms of permanency planning. The evidence of worker Anderson established the child has been having contact with the potential adoptive home since April 2020, when, as made known to the parent shortly thereafter, it began to be used by the child’s caregivers as an exclusive respite home. At the same time, the parent has not persuaded me that providing an opportunity to now appeal the Order will have potential to favorably impact the best interests of the child.
[26] The very limited evidence on the point does not satisfy me it would be in the child’s best interests to grant the motion. Having spent most of his/her short life in care, the child has been without the stability of permanency of place.
[27] I do not accept the reasoning of the parent that, when considering the impact of delaying an order for permanent care, the child is too young to appreciate his/her circumstances. Merely because the child is 37.5 months old does not mean the Court should make uninformed assumptions about his/her level of comprehension and how that might relate to his/her emotional quotient.
[28] Concerning the first part of the Jollymore test, I am persuaded the parent had a bona fide intention to appeal at the time the right to appeal existed. The parent’s evidence was that on January 7, 2021 s/he made inquiries of former counsel Mr. S. about a wish to do so. It is safe to infer from the evidence of both the parent and Mr. S. that the parent was not hearing what s/he wished to hear when s/he discussed with Mr. S. the possibility of an appeal. That said, I do not accept the parent’s evidence that Mr. S. advised “… I had no way to appeal a consent order at all”. The more detailed explanation I am satisfied Mr. S. provided to his former client about why he could not assist, was likely misinterpreted simply as “no” by the parent.
[29] The parent then approached Nova Scotia Legal Aid, and was able to meet with a (unidentified) lawyer on January 22, 2021. The precise outcome of that meeting is unclear. The evidence did not suggest the parent was doing anything else to move the matter forward during that time. I am satisfied that when s/he first met with present counsel on January 26, 2021, s/he was expressing the same desire to appeal as had been explored earlier that month, while the appeal period continued to run. Therefore, I am prepared to give the parent the benefit of the doubt in relation to having had a bona fide intention to appeal throughout the appeal period.
[30] Regarding the second aspect of the Jollymore test—whether the parent has put forward a reasonable excuse for missing the prescribed time limit—the limited evidence on this point was somewhat vague. I am unclear as to why there was a delay in time between meeting with Mr. S. and then meeting with a Legal Aid lawyer, why a further delay before meeting with present counsel, or why yet further delay in filing the motion. However, in this case little turns on this aspect of the test, given the conclusions I have reached regarding the best interests of the child and in relation to the third branch of the Jollymore test.
[31] Consideration of the third branch of the test requires a closer examination of the evidence brought forward during the contested application.
[32] As identified earlier, the thrust of the parent’s position on the motion was contained in his/her assertions external pressure imposed on him/her led to the decision to not contest the hearing. The parent’s evidence emphasized s/he had been under great “duress” at the relevant time. It also painted a picture of dismissive legal counsel who intentionally steered his client to withdraw from the contest with the Minister because he “could not be bothered” to participate in a contested hearing.
[33] Mr. S. was cross-examined on his retainer with the parent, including details of the amount of time spent on various tasks he performed on the file and the nature of his discussions with his client, along with his understanding of his client’s mental health history relative to his/her ability to endure the rigors of trial.
[34] The parent agreed with counsel for the Minister that, as had been testified to by Mr. S., once the parent identified s/he would not contest the Minister’s position, Mr. S. had the parent wait several days before finalizing that instruction. Doing so was appropriate, given the gravity of the parent’s decision. Clearly counsel recognized the delicacy of the situation.
[35] The parent also confirmed during cross-examination that: i) Mr. S. had multiple communications with him/her prior to the hearing, ii) Mr. S. had provided “fair advice” and answered questions honestly, and iii) Mr. S. had explained to him/her the finality of a permanent care order. Importantly, the parent agreed no‑one had made for him/her the ultimate decision to not contest the hearing.
[36] None of the evidence, including that of Mr. S., caused me to conclude his representation of his client inappropriately contributed to or pressured the parent to make the decision s/he now reconsiders. I can perhaps understand, although not endorse, the parent’s desire to fault someone else for the decision to not contest the hearing.
[37] Cross-examination of the parent also proved illuminating in a number of other respects. The parent acknowledged that as far back as October 2020 s/he had received the opinion his/her chances of success at a permanent care hearing were “slim” and “unlikely”. The parent agreed s/he knew before the hearing that by not contesting the Minister’s position, a permanent care order would undoubtedly be made. This included a recognition, based on discussion between the parent and social worker Whynot a week prior to the hearing, that the prospect of any post-permanent care access between the parent and the child would only occur following the making of the Order, and would be decided by the proposed adoptive family the Minister had already identified. This contradicted the parent’s direct evidence s/he thought the only way to ensure ongoing access with the child was to consent to the Order.
[38] Also contrary to his/her direct evidence, the parent agreed with counsel for the Minister that a week before the hearing: i) Whynot had advised it was not the worker’s role to pressure the parent into a decision, and ii) Whynot had repeatedly told him/her the worker could not provide legal advice, and the parent could advise Whynot if s/he needed more services. The parent acknowledged s/he had not accessed any services after that conversation, nor after giving amended instructions to Mr. S. on December 4, nor after the hearing on December 10. Furthermore, s/he did not do so at any point up to the date of this motion hearing.
[39] In direct evidence the parent suggested that a switch of legal counsel a mere month before commencement of the hearing was a decision out of his/her hands and one that ultimately disadvantaged him/her. Cross-examination satisfied me that in fact, the decision to change lawyers was one the parent had initiated, by making a specific request to Nova Scotia Legal Aid, not the other way around.
[40] The parent acceded to the Minister’s counsel that s/he knew, when instructing Mr. S. to not oppose the Minister’s plan at the eventual hearing, that there was an alternative. It was to continue to oppose the Minister’s plan by proceeding with a contested hearing.
[41] Cross-examination also revealed there were no threats made to the parent by Mr. S., and the pressure s/he felt was due to receiving advice from Mr. S. that s/he did not “like”. The parent agreed s/he had instructed Mr. S. to withdraw his/her plan because: i) s/he knew they could not “win” the permanent care hearing, ii) s/he had considered the options and made a “fully informed” decision to not contest (a significant admission in its own right), and iii) s/he knew a permanent care order would be the outcome of that decision.
[42] The parent allowed that with the assistance of Mr. S., s/he had prepared for the judge an affidavit confirming his/her amended position, which included a personal message to the child about the reasons for not contesting. The parent understood the affidavit could contain information s/he wanted the court to consider.
[43] During cross-examination the parent confirmed, and I accept, it was indeed his/her deliberate intention to withdraw from contesting the hearing. For that reason, s/he did not contradict Mr. S.’s representations to the judge during the hearing about his/her position, nor Mr. S.’s confirmation, when questioned by the judge, that he was confident his client understood the decision s/he had made.
[44] The parent also admitted during cross-examination that the “duress” s/he claimed in direct evidence was not duress, but rather pressure experienced during the decision-making process that led to the choice to withdraw opposition to the Minister’s position. Most telling, the parent agreed with counsel for the Minister that s/he now regrets his/her decision, despite having received sufficient legal advice before making an informed decision to not offer a parenting plan.
[45] In his/her direct evidence, the parent was critical about the lack of mental health supports available to him/her both before and after the December 10 hearing. The criticism was in the context of the parent not having the appropriate supports in place to assist in making an informed decision about whether to contest the hearing.
[46] To the extent the parent suggested an alleged lack of services exacerbated his/her vulnerability during the period in question, I am not persuaded of the same. During cross-examination the parent agreed: i) s/he knew how to and had previously accessed some services, ii) there was a range of service-providers to whom s/he had access, iii) no-one had threatened, forced, coerced or physically intimidated him/her into withdrawing his/her plan to contest the hearing, and iv) s/he knew it was possible to present a plan and have the judge decide, but found the prospect of testifying “fearful” and “overwhelming”.
[47] I am not persuaded the parent, who undoubtedly was feeling vulnerable due to the magnitude of the decision made, was left without the opportunity for mental health supports. Nor am I prepared to conclude the parent experienced inappropriate pressure imposed by legal counsel, social workers, or anyone else.
[48] On the third aspect of the test, whether there are compelling circumstances consisting of, at least, arguable grounds of appeal, the parent has not met his/her burden. While it is not my task to examine the proposed grounds of appeal to the same extent a panel would, I am to consider whether “… there is a strong case for error at trial and real grounds justifying appellate interference.” (Bellefontaine v. Schneiderman, 2006 NSCA 96 at para. 3.)
[49] The proposed notice of appeal is confined to factual matters. It identifies as the grounds of appeal that: i) “[O.A.] was under immense pressures, stress, and undue duress when the decision was made”, and ii) “[O.A.] was represented by ineffective legal counsel”. Neither of these grounds asserts a strong case for error at trial, so much as a request to have the Court reflect back on and reconsider the circumstances of the case. I question whether an appeal would have a reasonable chance of success.
[50] While the course of action the parent chose in December 2020 is one s/he now regrets, the circumstances do not rise to the level of “compelling” or “exceptional” as those terms were used in Jollymore, supra (at para. 22). Saunders J.A. endorsed the Court’s flexibility in the application of the three part test:
[24] I prefer a less rigid approach. Cases cannot be decided on a grid or chart. Ultimately the objective must be to do justice between the parties. I agree with the observations of Justice Hallett of this court in Tibbetts v. Tibbetts (1992), 112 N.S.R. (2d) 173 at para. 14:
There is nothing wrong with this three part test but it cannot be considered the only test for determining whether time for bringing an appeal should be extended. The basic rule of this court is as set out by Mr. Justice Cooper in the passage I have quoted from Scotia Chevrolet Oldsmobile Ltd. v. Whynot, supra. That rule is much more flexible. The simple question the court must ask on such an application is whether justice requires the application be granted. There is no precise rule. The circumstances in each case must be considered so that justice can be done. A review of the older cases which Mr. Justice Cooper referred to in Scotia Chevrolet Oldsmobile Ltd. v. Whynot and which Mr. Justice Coffin reviewed in Blundon v. Storm make it abundantly clear that the courts have consistently stated, for over 100 years, that this type of application cannot be bound up by rigid guidelines. [Emphasis added]
(See also J.B.P. v. L.J.S., 2007 NSCA 34 at para. 12; Raymond v. Brauer, 2014 NSCA 43 at para. 11).
[51] While I can understand the parent may now wish s/he had proceeded in a different manner regarding the hearing, that does not equate to a conclusion that doing justice requires the motion be granted. With respect, granting the motion on that basis could open the floodgates to permit other parents, who have in the past or might in future find themselves regretting a similar decision, to seek to launch an appeal at an indeterminate point beyond the expiration of the statutory period. Such a result would, at the very least, undermine the intentionally shorter appeal period provided in the Act.
[52] In conclusion, the parent has not persuaded me on either the best interests of the child test, nor the third branch of the Jollymore test. This is not a situation in which doing justice requires the granting of the motion. Therefore, the motion is dismissed, without costs to either party.
Beaton J.A.